Robinson agt. National Bank of New Berne. action or proceeding in any state, county or municipal court." We e concur with the general term in the opinion that these words of prohibition must be deemed to have the same relation as the other things prohibited and apply only to insolvent corporations, or one about to become so; and that the object of the entire section is to prevent one creditor of a corporation, whose assets are insufficient to meet its liability, from obtaining a preference, whether it is sought through a voluntary assignment or transfer, or payment, or the form of a legal proceeding. It is plain that this is not the case before us; nor is the cause of action created by the act; nor does it arise in consequence of the violation of any of its provisions. It is for breach of contract, a remedy for which by action exists at common law, and for the enforcement of which against the property of a non-resident the statute has given the suit in question. It is a proceeding in rem, merely, not in personam, for that purpose the court neither has nor does it assume to have jurisdiction (People agt. Baker, 76 N. Y., 87). It must therefore, like other proceedings in rem, be prosecuted where the thing on which it is founded is situated (Casey, Recr., agt. Adams, supra). The attachment is not to bring the defendant into court, its object is to give the plaintiff execution against the thing attached (Kilbourn agt. Woodworth, 5 Johns., 37). It does not go beyond it. It is not to compel the payment of debts but to make the property of absentees liable for their debts. Execution can go no further, neither against the property nor the person. It is confined to the property taken, and if it cannot be maintained the plaintiff is remediless unless he goes out of his own state and into the place where the debtor is located; for, as we have seen, according to the appellant's theory the state court has jurisdiction only in that place; and the same statute which confers it in like manner restricts the jurisdiction of the Federal courts. The order appealed from should be affirmed, with costs. VOL. LIX 29 Trustees of the Northern Dispensary of New York agt. Merriam et al. N. Y. COMMON PLEAS. THE TRUSTEES OF THE NORTHERN DISPENSARY OF NEW YORK agt. BENJAMIN W. MERRIAM et al. Foreclosure of mortgage —judgment for deficiency — when and under what circumstances motion to set aside such judgment may be made Code of Civil Procedure, section 1290. In a foreclosure suit judgment for a deficiency was entered against parties upon a covenant in the deed given them upon the purchase of the property, whereby they assumed the payment of the mortgage. In the contract for the purchase they were simply to take the property subject to the mortgage. When they were made parties to the foreclosure suit they were unable to find the contract, and did not, until some time after judgment, discover that by the deed they were made to assume the mortgage, the instrument having been drawn without their inspection; they, therefore, allowed the foreclosure suit to go by default: Held, that when the contract was discovered, it being within ten years after the judgment was entered, the defendants were entitled to ask that the judgment be opened and they be allowed to come in and defend. As, by the terms of the contract, defendants were not to assume the mortgage the covenant which imposed the liability upon them was a mutual mistake between the parties thereto; and when the discovery of the contract showed defendants' non-liability for the deficiency they then had the right to resist responsibility which they had unknowingly assumed. Special Term, July, 1880. In this foreclosure suit judgment for deficiency was entered against Messrs. Koch & Jacob, attorneys, on November 9, 1878, upon a covenant in the deed given them upon the purchase of the property, whereby they assumed payment of the mortgage. In the contract for the purchase they were simply to take the property subject to the mortgage. When they were. made parties to the foreclosure suit they were unable to find the contract, and did not until then discover that by the deed they were made to assume the mortgage, the instrument Trustees of the Northern Dispensary of New York agt. Merriam et al. having been drawn without their inspection; they, therefore, allowed the foreclosure suit to go by default. Then when the contract was discovered the defendants, Koch & Jacob, asked that the judgment be opened and they be allowed to come in and defend. LARREMORE, J.-This motion is made by the defendants, Koch & Jacob, to open a judgment entered by default against them November 9, 1878. It is based upon an error of fact not arising upon the trial and falls, therefore, within section 1290 of the Code of Civil Procedure. By the terms of the contract of sale they were not to assume the mortgage in question; and the covenant in the deed which imposed this liability upon them was a mutual mistake between the parties thereto, for the contract was in writing and there is nothing to show that there had been any change in its terms, in pursuance of which the deed should have been drawn. Not having the contract at hand when the foreclosure was had the defendants rightfully suffered a default, but when the discovery of the contract showed their non-liability for the deficiency they then had the right to resist the responsibility which they had unknowingly assumed. Suppose the recital of the amount of the mortgage in the deed had exceeded the amount of that named in the contract, would the former control and leave the defendants without any redress? There is no principle of equity that would sustain such a proposition. The defendants are entitled to their defense (Kilmer agt. Smith, 77 N. Y., 226). Nor can I understand how a stipulation, to which these defendants were not parties, could change the order of payment of the liability of the defendants who were responsible for the deficiency. According to the usual practice the liability was both joint and several, and I cannot understand from the papers submitted how the defendant Merritt has become a guarantor for these defendants. If he had paid the claim he might claim contribution, but he cannot insist, by virtue of any legal Matter of Union Avenue. right, that a newly-discovered and meritorious defense may not be interposed to an alleged personal liability where the laches are satisfactorily explained and the foreclosure proceedings proper are not impugned or delayed. Motion granted on payment of costs; order to be settled, on notice, July twentieth at 11 a. M. SUPREME COURT. In the Matter of UNION AVENUE. Commissioners to ascertain damages and assess the same — -When the court will not interfere with their findings and conclusions. The court should not, unless there be a palpable and manifest error committed, interfere with the findings and conclusions of a commission duly appointed by the court to ascertain the damages to the owners of property taken for the widening of a street or avenue, and to assess and apportion the same. The report considered and the objections commented upon and reasons given for the confirmation of the report. Special Term, May, 1880. MOTION to confirm the report of commissioners on the widening of Union avenue. George C. Preston and Seymour L. Stebbins, for motion. A. T. Clearwater, E. S. Wood, C. R. N. Champlin and M. Schoonmaker, opposed. WESTBROOK, J. — In conformity with section 94 of the charter of the city of Kingston a commission was duly appointed by this court, composed of Henry C. Connelly, David Gill and Daniel Allen, to ascertain the damages to the Matter of Union Avenue. owners of property required for the widening of Union avenue, and to assess and apportion the same on the real estate and against the persons benefited thereby." The report of the commission is now before the court for confirmation, and to it'objections are made by some of the owners of property proposed to be taken on the ground that the sums allowed them are insufficient, and, also, by persons residing at the upper end of the avenue who claim that their property is erroneously assessed, and that property located upon other streets in the vicinity of the improvement should also be assessed. The general rule is well settled that the court should not, unless there be a palpable and manifest error committed, interfere with the findings and conclusions of a commission of this character. The men comprising the present one were selected with great care, and all parties had in them the fullest confidence. The duty they were called upon to discharge was entirely a matter of opinion and judgment, upon which judgments and opinions will be as many as the number of persons called upon to give them. By the section of the charter before referred to they were required to "view the premises and, in their discretion, receive any legal evidence." This language shows that they have full power to rely upon their own sight and judgment; and though they have the right to receive, as they did receive, evidence, still they have to act largely upon their own judgments. A careful consideration of the claims of the several persons who insist that the damages awarded to them are insufficient induces me not to disturb the report in any of those instances. Very likely, if the questions had been before me originally, I might have differed with the gentlemen who have made the estimates, but where so much depends on opinion it would be unsafe and improper to reverse their conclusions. It is claimed, however, that the commissioners have committed errors of law, and these alleged errors will next be examined : First. It is said that property upon other streets should |